Disclaimer

Information on this webpage is provided as a public service by the Government of Canada. While every effort is made to provide accurate information, information contained here is provided on an "as is" basis without warranty of any kind, express or implied. The Government of Canada assumes no responsibility or liability of any kind and shall not be liable for any damages in connection to the information provided. This publication is not intended to provide legal or other advice and should not be relied upon in that regard. The reader is encouraged to retain a lawyer, if arrested or detained, and to supplement this information with independent research and professional advice. The information on this webpage is updated on a regular basis; however, laws are subject to change at any time.

Context

This document is intended to give you basic information on how the Chinese criminal law system functions. It is not a substitute for legal advice, which can only be provided by a lawyer qualified to practice in China. It should also be read in conjunction with A Guide for Canadians Imprisoned Abroad.

If you break the laws of another country, you are subject to the judicial system of that country. Being a foreigner or not knowing the local laws is not an excuse. Global Affairs Canada can neither protect you from the consequences of your actions nor override the decisions of local authorities.

The Chinese and Canadian criminal law systems are significantly different. This can increase the stress and practical problems arising from arrest and imprisonment in China. For example, please note that in China:

Detainees can only meet with their lawyers and, in the case of foreign nationals, consular officials; they cannot normally speak to family members or friends during detention. Following final sentencing, prisoners can only be visited by family members, not friends.

After the official arrest, the law allows for an investigation and prosecution review period of up to 13.5 months before formal charges must be laid.

The Government of Canada will seek to ensure that you are not penalized for being a foreigner and that you are neither discriminated against nor denied justice because you are Canadian. It cannot, however, seek preferential treatment for you or try to exempt you from the due process of local law. The Government of Canada cannot interfere in the judicial system of another country, just as Canadians would not stand for another government interfering in Canada’s judicial process.

Your choice of legal representation in China can be critically important and should be made with care. Consular officials can provide a list of lawyers who practice in the area of law related to your particular type of case and who may have represented Canadians in the past. They cannot, however, recommend specific lawyers. You may prefer to hire a lawyer who is not on the list. This decision remains your responsibility. For further information, consult “Hiring a foreign lawyer” in A Guide for Canadians Imprisoned Abroad.

Arrest and detention

Chinese criminal law is applicable to both citizens of China and foreigners who commit crimes within the territory of China.

The police can detain suspects for up to 37 days before the prosecutor approves the arrest. Specifically, after you are detained, the police will file, normally within three days, an arrest request for the prosecutor’s review and approval. Under special circumstances the filing time can be extended by one to four days. If, however, you are suspected of committing crimes in multiple places, being a repeat offender or being part of a gang, Chinese law provides for up to 37 days’ detention before official arrest.

After an official arrest, you may be detained for up to 13.5 months before formal charges are laid and the case is transferred to the court.

If you are detained, you will usually be taken to a detention facility and your Canadian passport will be confiscated by the police. Please inform a Canadian consular official if this happens to you. You are not normally able to make phone calls or meet with family members until the final judgment takes effect. Under the Chinese Criminal Procedure Law, a suspect has the right to hire a practising lawyer from the date on which he/she is first interrogated by the investigating authority or is subject to compulsory measures. There are some exceptions where permission must be granted by the investigating authority and access to a lawyer may be denied. Chinese law does not allow for “the right to remain silent.” You can have access to an interpreter, usually provided by the case handling authorities, if you are not able to communicate in the local language, but the availability and quality of interpretation varies.

Your rights under the Vienna Convention on Consular Relations and the Consular Agreement Between the Government of Canada and the Government of the People’s Republic of China

If you are detained or arrested in China and wish to have Canadian consular officials notified, you should communicate your request to Chinese authorities. Chinese authorities have an obligation, under Article 36 of the Vienna Convention on Consular Relations (“VCCR”), to advise you of your right of access to a consular representative. They are not, however, obliged to inform a Canadian consular post of your detention or arrest, unless you ask them to do so.

Under the VCCR, Chinese authorities are also required to send any communication you address to a consular post. For example, if you write a letter to the Embassy of Canada or another Canadian consular office in China, that letter must be delivered. This is in accordance with your rights to communicate with, and have access to, a consular official. These rights must be exercised in conformity with the laws and regulations of China.

If you choose to speak with Canadian consular officials, any information you give them will remain confidential, subject to the provisions of Canada’s Privacy Act. It will not normally be passed on to anyone other than the consular officials concerned with your case without your permission. However, under the Privacy Act, personal information may be disclosed in certain circumstances, such as in cases where disclosure would clearly benefit you, where the public interest in disclosure clearly outweighs any invasion of your privacy, or pursuant to a court order. Please consult the Consular services privacy notice statement for more details.

At your meeting with a consular official, please inform him/her if Chinese authorities did not inform you of your right to request that Canadian officials be advised of your arrest or detention, or if at any time they denied you the right to communicate with, or have access to, a Canadian consular official.

If you are detained, arrested or otherwise deprived of freedom, Chinese authorities also have an obligation, under the Consular Agreement between the Government of Canada and the Government of The People’s Republic of China (the Consular Agreement), to notify Canadian consular officials as soon as possible of the detention or arrest of a Canadian citizen and the reason for detention or arrest. You should still explicitly request consular access if you wish to have access to Canadian consular officials. Canadian consular officials can visit you, arrange for interpretation services and assist in accessing legal assistance. Chinese authorities are required to allow a Canadian consular official to visit you as soon as possible. At the latest, Chinese authorities should allow Canadian officials to visit you two days after they have notified the consular officer of your arrest. Under the consular agreement, you can also receive parcels containing food, clothing, medications and reading and writing materials from Canadian consular officials.

Under the Consular Agreement, if you cannot leave China within the validity period of your visa due to criminal proceedings, you still have the right to access to Canadian consular officials and protection by Canada.

Dual citizenship is not legally recognized in China. If local authorities consider you a Chinese citizen, they may refuse to grant you access to Canadian consular services, thereby preventing Canadian consular officials from providing you with those services. You should always travel using your valid Canadian passport and present yourself as Canadian to foreign authorities at all times to minimize this risk. Citizenship is determined solely by national laws, and the decision to recognize dual citizenship rests completely with the country in which you are located when seeking consular assistance. See Travelling as a dual citizen for more information.

Ensure that you are well informed about Chinese law and practices relating to determination and loss of Chinese citizenship, including cancelling a household register (“hukou”) and applying to renounce Chinese citizenship.

Filing a case

After a victim reports a criminal case to the Public Security Bureau (PSB), it normally takes no more than three days for the PSB to do the initial investigation before filing the case. This period can be extended up to seven days if evidence needs to be verified, and up to 30 days for significant and complicated cases.

If the PSB decides not to file a case, the PSB will issue a notification of not filing a case and deliver it to the victim within three days.

When the PSB decides not to file a case, the victim can report the case to the prosecutor. If the prosecutor holds the same opinion as the PSB, the victim may apply for reconsideration. In certain criminal cases, a victim has the right to directly bring a lawsuit to a court.

Investigation and bail

The investigating authority has up to 7 months to conduct an investigation before a case must be sent to the prosecutor.

All detainees, including foreign nationals, may apply for release on bail by providing security in the form of an individual guarantor or cash deposit. This is done with the assistance of a lawyer. A suspect or defendant may be released on bail if the police, the prosecutor or the court deems it appropriate under certain circumstances, such as the detainee is suffering from a serious illness, is pregnant or breastfeeding, or might be punished by fixed-term imprisonment or a more severe punishment, but would not pose a threat to society if released on bail.

During the bail period, you are required to comply with a series of restrictions including appearing before the court when summoned, not leaving the city or county where you reside and reporting any change of residential/working address or contact details to the police within 24 hours. You may also be ordered to surrender your passport or driver’s licence to the police and be instructed not to visit certain places and/or meet with certain people. If you violate these restrictions, you may forfeit your cash deposit or be subject to residential surveillance or other punishment.

If you meet the conditions for bail but are neither able to provide an individual guarantor nor able to pay cash deposit, you may be placed under residential surveillance. During the residential surveillance period, you are required to observe certain restrictions including not leaving the residence under surveillance or not meeting or communicating with others without permission, appearing before the court when summoned and surrendering your passport or driver’s licence to the police.

Chinese law provides for a maximum of 12 months for bail and six months for residential surveillance.

Prosecution review and timeline extension

After the case is transferred to the prosecutor for review, he/she is required to decide, within 1.5 months, whether to prosecute. The prosecutor can, however, refuse to issue an indictment and send the case back to the investigating authority for supplementary investigation up to two times. The timeline for prosecution review will be recalculated if the case is transferred to the prosecutor after each supplementary investigation. It can take up to 13.5 months from the official arrest to the criminal trial.

The criminal trial

A criminal trial typically consists of five parts:

court-opening session (xuan bu kai ting);

court investigation (fa ting diao cha);

court debate (fa ting bian lun);

final statement(s) of defendant(s); and

judgment pronouncement.

There can be more than one court hearing during a trial. Family members (number may be limited) are usually able to attend court hearings and observe the hearing; they are prohibited from speaking to you.

The judgment, including sentencing, is normally pronounced during a final court hearing held specifically for this purpose. In some cases, the judgment is presented to you in written form only

Duration of a trial and sentencing

Under the current Chinese Criminal Procedure Law, the court has two to six months, from the date a case is transferred to the court, to hold court hearings and issue an initial judgment. This process can be longer with the approval of the Chinese Supreme People’s Court. The severity and complexity of a case usually have an impact on the length of a trial.

During the trial, under certain circumstances, such as the need for supplementary investigation or additional charges, the prosecutor may suggest a postponement of the hearing, up to two times, for up to one month each time. Before the court pronounces the judgment, the prosecutor may change, add or supplement charges if he/she thinks appropriate.

The trial timeline can be reset if a case is transferred to the court after supplementary investigation.

A trial may be suspended due to reasons such as a defendant’s serious illness or escape. The suspension time of a trial will not be counted as being part of the overall trial length. The trial will be resumed only after the cause of the suspension is resolved.

You have the right to file an appeal, through the original trial court or directly with the court of appeal, within ten days from the day following receipt of the judgment. The prosecutor can also appeal the judgment. Under current law, the appeal should take up to two to four months. This process can be longer with the approval of the Chinese Supreme People’s Court.

You can also file a petition to the court or the prosecutor against a judgment or ruling that has already taken legal effect, but filing the petition will not stop the execution of the judgment or ruling.

You can file a petition to the court that provided the judgment or order within two years of the start of the execution of the criminal punishment. If the petition meets certain conditions, the court must retry the case. If the court rejects the petition, it may be filed to a higher-level court. Should the Supreme People’s Court retry the case or reexamine and reject the case, no further petitions will be accepted.

Transfer to a Canadian prison

There is currently no transfer of offender treaty in place between Canada and China. Canada’s International Transfer of Offenders Act, however, provides for the possibility to request a transfer to a Canadian prison through an administrative arrangement between Canada and the foreign government. Such arrangements are made on a case-by-case basis and are subject to the consent of the offenders, the Canadian Minister of Public Safety and the foreign government. The consent of provincial or territorial authorities in Canada may also be required. If your application is accepted by all parties, you would be transferred to a correctional facility in Canada to complete the remainder of your sentence, subject to Canadian laws and regulations.

An application for transfer can be submitted only after you have been convicted and sentenced. All appeals concerning your conviction and sentence must have been exhausted or the prescribed time for an appeal must have expired. In addition, the offence(s) you were convicted of must be an offence in Canada, your sentence must be one that can be administered in Canada and at least six months of your sentence must remain to be served at the time you submit your application to transfer to Canada. You should consult your lawyer if you are considering applying for a transfer. For further information on transfer requests, please consult the brochure A Guide for Canadians Imprisoned Abroad.

Should you have any questions about the application process, you may also contact Correctional Service Canada at:

Clemency intervention in death penalty cases

The death penalty in China is usually administered to offenders of serious and violent crimes, particularly crimes severely endangering national or public security, social order or infringing individuals’ rights, such as aggravated murder, rape, kidnapping or human trafficking of an extremely serious nature. China also retains certain capital offenses for non-violent crimes, such as drug smuggling or trafficking, production or sale of counterfeit medicine of an extremely serious nature. Under Chinese law, the death penalty shall not apply to persons who were under 18 years old when they committed the crime, women who are pregnant during the trial or (with exceptions) persons over 75 years old at the time of trial. The death penalty, as well as the death sentence with two years’ suspension, must be decided or approved by the Supreme People’s Court.

If you have been charged with or convicted of a crime punishable by death, you should consult your lawyer and speak to a Canadian consular official. The Government of Canada opposes the use of the death penalty in all cases, everywhere, and will undertake clemency intervention in your case. Clemency intervention is defined as any diplomatic effort, at any stage of the process after detention, aimed at avoiding imposition of the death penalty or the sentence being carried out.

Free legal aid

You may seek legal aid from Chinese legal aid centres, from the date you are first interrogated by the police or are subject to compulsory measures, if you cannot retain a lawyer due to economic difficulties or other reasons.

You may apply for legal aid by providing documents relevant to why you cannot retain a lawyer. The legal aid centre will review and decide whether to grant legal aid within seven days after receipt of the application. If the legal aid centre rejects the application, you may appeal the decision to the relevant judicial bureau.

Chinese authorities must notify the local legal aid centre within three days of discovering a defendant who is a minor, or is blind, deaf or dumb, or is someone who may be sentenced to life imprisonment or the death penalty. The legal aid centre is required to designate a lawyer within three days of receiving the relevant notice. The lawyer will start representing you immediately after you agree to this free, legal aid arrangement.

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